News, politics, insights, inside information from the left

Main Menu

McNicol: Mandelson’s undermining is ‘just holding an opinion’

Iain McNicol’s performance – when he’s even here – as the most senior employee of the Labour Party stumbles from awful to culpable.

In February, Tony Blair’s oily right-hand man, Peter Mandelson, said he worked every day to undermine Jeremy Corbyn’s leadership.

He wasn’t subtle about it. He was speaking to the House of Lords. He wanted to be sure he got his message across, too – so much so that he said it twice, with a slight variation:

I work every single day in some small way to bring forward the end of his tenure in office..Something, however small it may be – an email, a phone call or a meeting I convene – every day I try to do something to save the Labour party from his leadership.

Many Labour members were outraged. At least one enough so to write to Iain McNicol, the party’s General Secretary, to ask him to take action against Mandelson, who was unquestionably acting against Labour’s ‘aims and values’ and bringing it into disrepute. She had to do so on a number of occasions to get even a first, inadequate answer.

It seems that missives complaining to you have to be written on a regular basis. I am appalled that Peter Mandelson should publicly admit that he is working on a daily basis to bring down the elected leader of the Labour Party. It is no wonder that the party are apparently falling behind in the polls when he and members of the PLP are continually sniping at Jeremy Corbyn, thereby encouraging the negative press coverage which seems to be a daily event at the moment.

When will the NEC do something to correct this situation? unless of course they are in agreement with the way things are.

Yours faithfully

McNicol’s reply took six days to come (another vacation?) was so meaningless as to be non-responsive:

Both the Rule Book and the National Executive Committee make it clear that the mere holding or expression of beliefs and opinions should not in itself be a cause for disciplinary action. If you are not happy with comments made by a Labour politician you may wish to take that up with the person in question as I am sure they would be interested to hear the view of Labour Party members.

You can get contact details for Members of the House of Lords from:http://www.parliament.uk/mps-lords-and-offices/lords/

Thank you for your reply to my previous e-mail. However I do not accept your argument that Peter Mandelson was merely expressing an opinion. Stating quite clearly that he does everything he can to bring down the current Leader of the Labour Party is something quite different. I repeat, he should be suspended from the Labour Party and you and your team should be looking at this. You were certainly quick enough to suspend and expel members for far less during the Leadership election last year.

I think you will find that there is much support amongst members for this course of action. You cannot have one rule for one and another rule for others, however much influence they may have on senior party members.

Yours faithfully

McNicol’s contemptuous – and contemptible – response was to completely ignore everything Christine had said and merely to repeat his nonsensical point. He’s clearly good value for the huge salary that sends him on all those holidays:

As previously explained both the Rule Book and the National Executive Committee make it clear that the mere holding or expression of beliefs and opinions should not in itself be a cause for disciplinary action.
Your complaint has been reviewed by the Chair of the NEC and no further action will be taken in this matter.

If working for something is the same as holding an opinion, we should all be getting paid a lot more.

The word ‘undermine’ has its roots in siege warfare. If a fortress’ walls could not be breached directly, the attacking force would dig under the walls, literally ‘mining under’ the foundations – which would either fall under their own weight or else be brought down by explosives planted among the foundation.

Undermining in siege warfare

By McNicol’s logic, if anyone went round to his house and started digging out the foundations of his house, he would take no action – the demolition team would simply be ‘holding or expressing an opinion’.

But of course he would act to stop them – because he would want to stop his house falling down. It appears he is far less committed to the continued stature of the Labour Party – in fact, he’s quite prepared to see it fall, as long as it brings down Jeremy Corbyn with it.

It seems he’s so arrogant about this that he doesn’t even try to camouflage it – as long as you’re a right-winger opposed to Corbyn, you can do whatever the hell you want. You’re just expressing your opinion.

But if you’re pro-Corbyn, retweeting a Green party tweet – or even just expressing how much you really, really like a band – well, that’s an unacceptable action and grounds for suspension.

Was anyone ever less fit?

The SKWAWKBOX is provided free of charge but depends on the generosity of its readers to be viable. If you found this information helpful and can afford to, please do click hereto arrange a one-off or modest monthly donation via PayPal. Thanks for your support so this blog can keep bringing you information the Establishment would prefer you not to know about.

How is he appointed or sacked? Is the NEC responsible? Is there some obscure committee somewhere that has the power to get rid of him? As long as the LP is run by these stupid Stalinist bureaucrats attacking their own leader it will get nowhere.

This can in no way be squared with actions taken against other members. If the mere holding or expression of beliefs and opinions is not sufficient for disciplinary action then why have members been suspended for making comments about various PLP members or using any of the trigger words he listed in his memo last year? Why was KL charged then? If the answer is because they caused offence so rise above ‘mere’ then arguably so does the comment from Lord Mendelsohn as I have no doubt dozens of members could be found to say they found it offensive. Although I personally take issue with a standard that seems to only look to the subjective offense caused and has no objective standard or freedom of expression protections.

The irony of course is he just gave pretty solid ammunition to any member who sues because they got suspended/expelled for a ‘mere’ expression of opinion. It pretty much demonstrates a totally arbitrary and bias approach to the enforcement of the rules and thus falls foul of the CoA Evangelou ruling which made clear that contractual discretion must be exercised honestly, genuinely and in good faith and not in an arbitrary, capricious, perverse or irrational manner. I would suggest it would be a steep hill to show that the reason PM was ignored but member X who likes the foo fighters was suspended didn’t fall pretty neatly into most of those categories thus rendering the discretion ultra vires and a breach of contract.

Like Schultz he is corrupt, incompetent and actively undermining the party he is supposed to be the servant of.

This latest condescending missive to a Labour Party member condoning Mandelson’s sabotage of the party merely adds to the long list of evidence of his treacherous acts against the party.

It is time for CLPs who support the leadership of the Labour Party to organise a coordinated nationwide submission of motions of no confidence in Iain McNicol demanding he stand down with immediate effect.

Would it be okay if we compose the motion and coordinate the timing of the submission of the motion through your blog, Skwawkbox?

How can this: “I work every single day in some small way to bring forward the end of his tenure in office..Something, however small it may be – an email, a phone call or a meeting I convene – every day I try to do something to save the Labour party from his leadership.”
be construed as, “the mere holding or expression of beliefs and opinions.”?
It is patently NOT that. It’s a statement of the fact that he works every day with the aim of removing the man who was twice, democratically, elected Leader of the Labour Party.
In 2015, he stood against three other candidates, winning 59.5% of the total voted.
In 2016, he defeated a leadership challenge from MP Owen Smith by winning a whopping 61.8%.
I am completely in agreement with Christine that: “Stating quite clearly that he does everything he can to bring down the current Leader of the Labour Party is something quite different. I repeat, he should be suspended from the Labour Party and you and your team should be looking at this. You were certainly quick enough to suspend and expel members for far less during the Leadership election last year.”
Furthermore, it is an outright attempt to subvert our Leader. It is sabotage.
This is not merely attack against Mr Corbyn – it is an attack on democracy. Mandelson should be sacked immediately.

Notwithstanding my earlier comment I would agree. If you accept it as an expression of opinion then the arbitrariness issue arises. However it is clearly not a statement of opinion but rather an open admission of ‘actions’ taken on the basis of an opinion. PM believes JC to be a bad leader so he is taking daily actions to undermine him. There are two distinct issues here 1. opinion on JC, which I don’t share, but it is legitimate to hold it, 2. ‘actions’ taken to undermine JC on the basis of the opinion in 1. The first may not be a disciplinary matter but the actions could certainly be said to amount to prejudicial behaviour or disrepute and are not protected as mere expressions of opinion or belief.

It is difficult to see what can be done though other than an NEC member raising it at the full NEC and seeking to have an NEC vote to begin disciplinary measures. That would be within the rules but don’t hold your breath.

To attempt to answer your points. I made no reference to the ‘spirit’ of the rules and that is pretty much an irrelevance anyway. The question in looking at the rules and giving them a legal interpretation is one primarily of the textual analysis, purpose or ‘spirit’ is a secondary concern. At least that seems to be the view of the Court of Appeal anyway.

In that case it is simply a matter of looking to the text and the language used. The focus of this discussion has been the rule at Chapter 2, Clause I, section 8. The key parts of the specific text being:

“No member of the Party shall engage in conduct which in the opinion of the NEC is prejudicial, or in any act which in the opinion of the NEC is grossly detrimental to the Party…”

Clearly the NEC has a broad discretion to form an opinion on whether a members conduct is either 1. prejudicial or 2. grossly detrimental. That would be exercised in accordance with the normal rules applying to contractual discretion; for a good summary of those see Evangelou v McNicol [2016] (COA). If you are keen I recommend reading all of the authorities referenced by the COA in that case. I have and they were helpful.

The section goes on to say:

“Any dispute as to whether a member is in breach of the provisions of this sub- clause shall be determined by the NCC in accordance with Chapter 1 Clause IX above and the disciplinary rules and guidelines in Chapter 6 below…”

If a dispute arises about the interpretation of this section as applied to a members conduct it is for the NCC to determine it. In doing so there is a condition applied that “The NCC shall not have regard to the mere holding or expression of beliefs and opinions.”

The rule at Chapter 2, Clause II, section 8 is capable of being applied to the Mendelsohn remarks on the basis the NEC can examine it and form an opinion of whether the conduct is either prejudicial or grossly detrimental. It does seem to me to be quite feasible to decide the remarks and their content went beyond mere holding or expression of opinion and consequently the NEC could decide there has been conduct that is prejudicial. This is not an alien concept at all it is quite clearly within the rules as written. In this instance the NEC have chosen not to form the opinion the conduct was prejudicial. As long as this accords with the general rules of the exercise of a contractual discretion this is legitimate.

Your second point still labours under the misapprehension that the Labour party is a democratic organisation. It is not. It is a private members association in the form of an unincorporated association with some democratic mechanisms and processes. This is similar conceptually to the UK not being a pure democracy but rather a constitutional monarchy with democratic features. The key legal foundation of an unincorporated association is contract law. Therefore the actions of members are at all times constrained by the rules or the contract to which they are a party. If the rules say no member can actively agitate against any officer of the party then so long as this rule is correctly applied and not contrary to public policy it would be valid and members can be restricted in their behaviour. Whether this makes the organisation ‘democratic’ or not is neither here nor there. The conduct of members can be constrained in any legal way the rules/contract allow.

The questions about the duration of my membership are not especially relevant as I assume you are not very subtly suggesting I am just a recent Corbynista blow in and so what would I know?. As it happens I have been a Labour member a little over 5 years. Prior to that I was involved in other parties in Northern Ireland and the Democrats in the USA. Yes I have done a fair bit of reading of party history; I quite like to read.

To answer those 2 of Benn’s questions you raised in relation to the party and the leadership. 1. The powers are defined in the rule book and any supplemental rules. 2. By submitting a valid nomination of a challenger to the leader supported by 20% of the PLP/EPLP in the period prior to the annual session of the party conference. Chapter 4, Clause II, section 2 subsection B(ii).

It is not being suggested that no-one can have a valid opinion that the current leadership are not to their preference and express that view and to a reasonable extent lobby others to come to share that view. If it is felt strongly enough then a mechanism exists to challenge the leader/deputy leader and obviously organising to exercise that right under the rules is again perfectly reasonable behavior. The difference in magnitude between this sort of reasonable internal opposition and the kind of sabotage and subterfuge that has been indulged in by many opposed to the current leadership is seismic. I suggest that where conduct slips over into causing ‘prejudice’ to the party it is potentially subject to discipline under the rule at Chapter 2, Clause II, section 8.

As is so often the case, it hinges on the interpretaion of “reasonable”. We both acknowledge the right to oppose the leadership and “to a reasonable extent lobby others to come to share that view.” You think that by saying the words that have been quoted, and perhaps by saying some other things not quoted in this article, Mandelson has gone beyond a “reasonable person’s” interpretation of “reasonable”. I do not agree and presumably the General Secretary, in whom the power to rule on such complaints has been invested by the NEC and endorsed by Conference, also disagrees.

I don’t wish to write another lengthy explanation. Suffice it say, more pithily this time, you are again incorrect. The word reasonable doesn’t appear in the section mentioned. It is not really part of contractual discretion either, except in the sense of Wednesbury unreasonableness which has a specific legal meaning, or perhaps the point made in Foster v McNicol on reasonableness in interpretation. It has stuff all to do with a “reasonable person’s” interpretation of “reasonable”. (Nb. You missed out the cliched reference to the Clapham Omnibus!)

Secondly the GS does not under the rules have a general power to decide disciplinary matters. The NEC can delegate its powers to national officers (Chapter 1, Clause VIII, section 5) but the process last summer that led to 4000 odd suspensions was a small panel of NEC members. Why in this case has the GS acted unilaterally? This particular delegation of powers has never been endorsed by Conference except in so far as the rule in Chapter 1 that allows for delegation of NEC powers was approved.

The question really is whether in exercising the contractual discretion granted the GS has done so in a way that is intra vires? The more often the party seems to turn a blind eye to behaviour like this by anti-Corbyn members but comes down like a tonne of bricks on members who ‘like the Foo Fighters’ the less defensible this behaviour is from an accusation of bias and abuse of discretion.

“Whyin this case has the GS acted unilaterally?” Which case do you mean? Do you mean the replies he has sent to inquiries about Mr Mandelson, quoted in the article? I obviously don’t know what happens at NEC meetings exactly but they are, I understand, held quite infrequently. Between meetings, the Compliance Unit, acting in the name of the GS, handles – especially these days – loads of disciiplninary matters and complaints from members and neither it nor the GS himself could possibly be asking the NEC to decide them all. The practice must be for them to be delegated to the GS, and from him to other officers. How else could it operate? Obviously, the NEC can always override, if necessary retrospectively, any operational decision by the GS. Perhaps it will turn its attention to Mr Mandelson and override the GS on that.

Actually, surely these things – “an email, a phone call or a meeting I convene” – ARE the expressions of opinions? When I write an email, I am expressing an opinion. Similarly when I speak on the phone. And I don’t convene a meeting except in order to express an opinion.

Stating publicly that you’re strongly opposed to the Leader is definitely not an unusual or unprecedentwed situation in our party. If you read Labour history, you will see how common it is, whether from Bevan, Wilson, Benn, Foot, Corbyn or McDonnell or Mandelson. It’s all normal.

The content of an email is perhaps opinion, depending on the facts of the content, the sending of it and the choice of whom to send it to are actions. As is convening a meeting, what is said at the meeting is most likely going to be expressions of opinion but could possibly be determinations of future actions to be taken. If you speak on the phone and say ‘I don’t think JC is a very good leader’, that is an expression of opinion but if you speak on the phone and try to persuade someone to carry out an act designed to undermine JC that is an action not an expression of opinion.

Mendelsohn said: “…I work every single day in some small way to bring forward the end of his tenure in office.

“Something, however small it may be – an email, a phone call or a meeting I convene – every day I try to do something to save the Labour party from his leadership.”

Clearly the list he gives is not exhaustive and he admits he tries every day to “do something”. This is an admission of action being taken not just expressing an opinion. His view on JC is his opinion but he has clearly gone beyond that in what he said and in what he is no doubt actually doing.

Clearly, an opinion cannot exist as an opinion unless it is the subject of some action to bring it to light, whether simply the “action” of speaking or writing it. I think you would agree with me on that. You are suggesting, though, that it could be more blameworthy if, for example, at ameeting, future actions were decided on and organised. But isn’t that just democracy that you are describing? In a democratic institution, people who are like-minded get together and decide on actions to propagate their point of view and promote their agenda? It’s called lobbying, organising, etc. I still don’t see what it is you think that Mandelson has done that would warrant discplinary action.

He says it himself. “every day I try to do something”. DO something. Not think something, no say something, not opine something. DO something. That’s not an opinion or an expression of one, that’s an action. Taking action to undermine the leadership of the Labour party, and hence the Labour party itself, surely must be an expellable offence?

You have comprehensively tried to exonerate McNicol and Mandelson by running rings round the rule book, but the facts are beyond question, if they have suspended others for tweeting opinions then Mandelson should have received the same unequivocal treatment. As should many others on the right, such as the language expressed against Jeremy by Jess Philips, that she said “she wouldn’t stab him in the back, but in the front. I really can’t see why McNicol failed to take action there, as that is not only offensive but brings into question the women’s sanity.

Mr O’Brian you are being a little obstinate. There is a clear distinction between holding and expressing an opinion in some form and actions in the pursuit of that opinion i.e. conduct that is capable of being ‘prejudicial’ to the party. This term in the rules is capable of quite broad interpretation. Some possible synonyms: :detrimental, damaging, injurious, harmful, disadvantageous, unfavourable, hurtful, inimical, deleterious, counterproductive…

Are you seriously suggesting that organising a meeting to plan an active campaign to unseat the democratically elected party leader and announcing this publicly is not capable of being seen as at the least unfavourable or disadvantageous to the Labour party? If so then the party has been prejudiced by this conduct and the matter should be referred by the NEC to the NCC for final determination and any punishment deemed suitable, which under the general powers of the NCC could include expulsion.

The rules make allowance for members holding a variety of opinions and expressing them. However the rule is in my view not intended to act as a shield for active conduct to undermine elected officers of the party based on differences of opinion about those officers. The party is not an unlimited democracy. It is a private association with some democratic features and mechanisms but members are also subject to its rules and their freedom of action within the party is constrained by these rules.

If a leadership election takes place then organising and lobbying for your preferred candidate is clearly acceptable and within the rules. Once however an officer is duly elected an onus exists, at least in your conduct, to tacitly accept that officers authority. You may hold the opinion that the person is not suitable for the office and the rules allow you to hold that opinion and even go so far as to express it. Where however that tips over into conduct that is designed not merely to facilitate the articulation your opinion but to conduct designed to actually bring it about then I suggest that is “prejudicial” to the party and a breach of the Chapter 2 rule.

There is a distinction between lobbying for support of an opinion in relation to a preferred policy or administrative action and conduct designed to damage the standing, both internally and externally, of an officer of the party. The former is the lifeblood of internal debate and discussion the latter is essentially internal sabotage.

I would also point out a concern at your pejorative use of the term ‘insanity’. This could be construed as being at the least insensitive of those suffering from a mental health disability or even at worst actually offensive. The way language like that is used has a cultural impact and to categorise insanity as a throwaway pejorative term is linguistically to reinforce the stigma that many people suffering from mental health disabilities already labour under. I am quite sure it was not your intent to characterise anyone in this way but I would respectfully ask you to consider your choice of words more carefully in regard to those persons in oppressed minority groups such as the disabled. Thank you.

Let’s pursue your example a little more. I think you are saying that it would be against the spirit, at least, of the rules for members to actively plan a campaign to change the leadership of the party. Now I think that this concept that you ar proposing is completely alien to the rules and that even the “spirit” of the rules could not be invoked to support your proosal. I would be interested to know which rules you think are even suggestive of this interpretation. Secondly, if members of a “democratic” organisation cannot agitate to change the leadership without being disciplined, then how is the organisation democratic? Is the ability to campaign against the leadership not the very essence of democracy? Is the ability to campaign to PROVOKE a leadership contest not a minimum requierment of a democratic organisation? And thirdly, this new concept that you are proposing is completely without precedent in the party. I don’t know how long you have been involved in the party or how much reading of party history you have done. But I would be interested to know of any precedent for the NEC ruling that members acting together in pursuit of a change the leadership of the party is “against the rules”. It simply isn’t, for the good reason that it is a democratic party. You might be familiar with Benn’s famous tests of democracy: “What power have yuo got?”…”How do we get rid of you?”.

Expressing support for a rival political party, e.g. the Greens, is specifically against the rules. Holding and expressing an opinion is specifically not against the rules. A while ago, you were very keen to propagate knowledge of the Rule Book. If Ian McNiicol disregards the absolute letter of the rules, he is open to legal challenge (as he discovered in 2016).

Actually expressing support for any political organisation that is not an official Labour group or unit of the party is a reason for auto exclusion. So it is not necessary it is a political party. This means of course supporting anything from Progress to the CLPD could fall under this definition. It probably is badly in need of a redraft.

The rule is the ‘mere’ holding or expression of opinion. The interpretation turns on the ‘mere’ part. If you express an opinion that has no other effect then that would seem to be protected but if your expressed opinion has some other consequence eg it causes someone offence, then it is no longer ‘mere’ so not protected. That seems to be how the NEC are currently applying this provision. The problem with this interpretation is that this means that any opinion you express must be judged by the most sensitive, reactionary, shrinking violet who hears it and if they are a bit upset it is now a rule breach.

I agree that there is a potential conflict between the rule that protects the mere holding or expression of an opinion and the rule against brinining the party into direspute (because it could be the mere expression of an opinion that has brought the party into disrepute). Senior Labour members who openly oppose the leadership, though, are an accepted tradition in our party so it would be contrary to well established precedent to sanction members merely for being openly opposed to the leader.

The section dealing with those offences is Chapter 2 Clause I section 8. It is not a separate section so it is not a conflict between rules at all. The issue of what constitutes conduct that “is prejudicial, or in any act which in the opinion of the NEC is grossly detrimental to the Party.” is ultimately subject to final determination by the NCC if there is any dispute. In making that determination “The NCC shall not have regard to the mere holding or expression of beliefs and opinions.”

Clearly the issue of the mere expression of beliefs and opinions is something the NCC is not allowed to take into account in determining if conduct is prejudicial or detrimental. So it would be impossible to merely express an opinion and have that solely be the grounds for discipline on the basis it brings the party into disrepute. At least if you didn’t want to be challenged in Court anyway.

What a FARCE! My husband was suspended during the Labour Leadership election for wishing three work colleagues on Facebook Happy Birthday he hasn’t got a Twitter account so it could only have been the posts he made on Facebook & to rub salt in the wound he isn’t political at all unlike me & very rarely uses social media.
I honestly believe it was taking too long trawling through social media to find supporters of JC & they ended up picking names out of a hat, metaphorically speaking.

Were’s the spade and were does McNicol and MEDALSOME (I know it’s not spelt that way) live?
I’m up for digging for VICTORY.
500 THOUSAND LABOUR MEMBERS WOULD GET THE JOB DONE A LOT QUICKER, WOULDN’T YOU SAY?

I once commented to my late father back in the 80’s that before the right wing establishment of the country would hand over power to the people either they would destroy it or ask their friends in America to do it to save it from the Socialist threat.

It would seem to me that these same people who infiltrated the Labour Party at that time and expelled many good Socialists and workers representatives from the party would be prepared to carry out the same actions on the Labour Party before it is handed by to its rightful owners, the membership !

Let’s hope there are still enough good people in the party to the wrong in this and democratically Di the right thing to save the party